The Massachusetts Medical Society (MMS) wishes to be
recorded in strong support of Senate bill 783 and House bill 3093, An Act
Improving Medical Decision Making. We
thank Senator Brownsberger and Representative Markey for sponsoring this
important piece of legislation.
Patients have a fundamental right to make decisions relating
to their medical treatment; this right survives a patient’s loss of decisional
capacity. The law thus provides important mechanisms for medical
decision-making for incapacitated patients. In Massachusetts, the gold standard
is the health care proxy, which provides an agent with full medical
decision-making authority for a patient, subject to some important patient
protections. For patients lacking a health care proxy, medical decision-making
is a cumbersome, expensive, and often lengthy process often involving going to
court for appointment of a medical guardian. Care can be delayed for weeks
before courts affirm a medical guardian.
In 2009 Massachusetts adopted the guardianship portion of
the Uniform Probate Code. The result is a process whereby providers treating
patients without health care proxies often have to seek judicial appointment of
a medical guardian for ordinary care decisions for incapacitated patients, and
they must return to courts for additional approvals on certain subsequent
decisions such as transfers to nursing homes. This bill would seek to improve
medical decision-making processes for incapacitated patients by creating
guidelines whereby their attending physicians could appoint surrogate
decision-makers for non-extraordinary medical decisions for patients lacking
health care proxies or MOLST forms. Nothing in this bill would change the
process for any patient with a health care proxy or any patient with a MOLST
form. This would be an alternative option for certain cases headed down the
path towards judicial appointment of a medical guardian. If for example, a
patient presents to a local hospital incapacitated due to a stroke, and that
person has not executed a health care proxy, an attending physician could
appoint per this new process a family member or close friend as the surrogate
decision maker—according the criteria laid forth in the statute—to make most
medical decisions so long as they conform to the protections laid out in the
bill.
This bill has contains several amendments from last
session’s version. This bill makes clear that the authority of a duly appointed
surrogate decision maker via this legislation would include the ability to make
decisions related to admissions to nursing facilities, but it would not provide
the ability to make decisions related to transfers to inpatient mental health
facilities. Because of the court decision Rogers
v. Commissioner of the Department of Mental Health and statutory
developments related to substituted judgment decisions, we think it is prudent
to carve out authority to make decisions regarding these mental health facility
admissions so that we do not create a situation where a surrogate decision
maker could authorize a transfer to a mental health facility, but would not be
able make decisions regarding the care provided at such a facility. This bill
also limits the authority of the surrogate decision-maker to make
“extraordinary decisions”- those interpreted by Massachusetts law of being of
most severity. In those cases, judicial appointment of a medical would remain
the legal process. Additionally, we propose the addition of procedural
safeguards for patients who actively refuse care while lacking decisional
capacity.
We now have growing evidence that this bill
would work. Two major academic teaching hospitals have now looked at this bill,
and gone back through charts where they had to seek judicial appointment of
medical guardians. The chart review showed that when hospitals had to go
through judicial guardianship appointments, half of the guardians who were
appointed by the court matched the criteria for the proposed statute,
demonstrating that this bill would cut red tape and significantly reduce time
and resources of the courts with the same positive results for hundreds of
guardianship cases at hospitals every year.
Specifically, this bill would reduce the
several-day-delay that takes place when hospital attorneys need to seek
judicial appointment of medical guardians. In the instance of a patient ready
to move to a skilled nursing facility, for example, keeping them unnecessarily
in a hospital bed wastes money, and it keeps the patient in an acute care
hospital where the team that will provide rehabilitation does not have access
to the patient.
In sum, we urge your support of this bill,
which we believe will significantly improve the medical decision-making
processes for patients without health care proxies.
Lastly, the Medical Society notes that this
bill would only work for patients who are fortunate enough to have family or
close friends that are capable of serving as a surrogate decision-maker for
them. We know that this would still leave a vulnerable subset of patients
without proper surrogates. For these
reasons, we also support House bill 3027, An Act to establish the office of
adult guardianship and decisional support services, which would create an
office to facilitate a network of skilled, trained, volunteers to serve as
surrogate decision-makers. We believe that this would complement our bill
nicely, and together they would substantially improve medical decision-making
in the Commonwealth.
Currently, only six other states in the
country do not have a priority list of surrogates for incapacitated patients
without health care proxies. We believe that this would be an important step
towards promoting safe, prompt, and efficient authorization of proper medical
care for patients who lack capacity.
